Nepalese Prime Minister Calling First Session of New CA

Nepalese Prime Minister Calling First Session of
New CA

by Siddhi B RanjitkarJanuary 11,
2014

Some of the Nepalese politicians have
been abusing the people’s mandate, others have been
challenging them but none of them have been for following
the rule of law. Nepalese politicians thought that they
could do anything while in power. They have inherited this
mindset of the Rana dynastic prime ministers. For example,
immediately after the voters placed the CPN-UML in the
second position, its leaders have started off demanding
power sharing with the NC talking the need for electing a
new president and a new vice-president. Then, leaders of
each political parties have the problems of making the lists
of nominees for the proportional representation in the newly
elected CA. Finally, they have the controversy of whether
the president or the prime minister should call the first
session of the newly elected Constituent Assembly (CA). None
of the political leaders, and their followers bothered to
think whether they are legal or constitutional, and other
professionals also did not to care of following the rule of
law but spoke on the party line. They would not waste so
much of time and energy on those matters if they were to
follow the rule of law.

CPN-UML leaders have been
demanding the election to a new president and
vice-president. The local media have reported that Chairman
of CPN-UML Jhalanath Khanal and senior leader of CPN-UML
Madhav Kumar made a pact on making Jhalanath Khanal the
president of Nepal on condition that Madhav Nepal would
chair the party. They did not care about what the Interim
Constitution of Nepal of 2007 has made the provision for the
president of Nepal. They thought that they could do anything
no matter what the constitution said.

In fact, politicians
had mutilated the Interim Constitution of Nepal of 2007
beyond recognition. Following the decision of the four-party
mechanism, one Prime Minister after another made the
recommendations, and the president issued the ordinances to
suit the needs of the political parties. In absence of the
legislature, political leaders have made the Interim
Constitution of Nepal of 2007 a scrap of paper. To make the
sitting Chief Justice of Nepal a chairman of interim
election council of ministers, Prime Minster Dr Baburam
Bhattarai made recommendations for suspending more than 20
Articles of the constitution, and for suspending many more
laws. The president happily issued the ordinances making the
Chief Justice of Nepal possible to be the prime
minister.

Prime Minister Dr Bhattarai did not resigned
from the office but the president sworn in the Chief Justice
as the chairman of interim council of ministers. The
president, the prime minister and the chief justice did not
think the need for following the rule of law. Neither the
president had fired the prime minister nor the prime
minister had resigned but the president sworn in the chief
Justice as the chairman of interim election council of
ministers: the unique situation of the rule of law. However,
none of the constitutional experts and lawyers did waste
time on talking the violation of the rule of law except for
Nepal Bar Association that has continued to say that the
current government headed by the incumbent chief justice was
unconstitutional, and the Bar never recognized it as a valid
government.

Jhalanath Khanal and Madhav Nepal must have
thought that they could share the offices of president,
vice-president, prime minister and speaker or chairman of CA
among the leaders of the NC and the CPN-UML. Leaders of
CPN-UML have spent a lot of time and energy on demanding the
holding of elections to the four major top offices. They
wanted their share in the large juicy pie of those powerful
offices. They did not care about what the constitution has
made the provision for the president and vice-president and
so on. They did not care about the mandate they have
received from the voters was not for demanding the offices
of president and vice-president but crafting a new
constitution.

They had set aside the crafting of a new
constitution. They have been thinking how to grab the State
power, and then use the State resources for the benefits of
them, their cadres, relatives and friends. That was what
exactly the Rana prime minister did during their hereditary
office of prime minister for 104 years of the darkest period
of the Nepalese history when Nepalis had nothing but to
starve and suffer from diseases and hunger for fattening the
mighty Rana families. Chairman of RPP-Nepal Kamal Thapa had
been calling for reinstating such kind of the regime but the
so-called democratic political leaders have been acting as
the neo-Ranas.

Concerning the elections to a new president
and a vice-president, the Interim Constitution of Nepal of
2007 has made the following provision:

36B. Election to
President: (1) The Constituent Assembly shall elect the
President on the basis of political
understanding.

(2) If political understanding is
not made pursuant to Clause (1), a person who secures a
majority of the total number of the then members of the
Constituent Assembly shall be deemed elected to the office
of President.

(3) Other procedures relating to the
election of President shall be as determined by the
Constituent Assembly.

(4) If any person holding any
political office to be filled by way of election, nomination
or appointment is elected to the office of President, such
political office shall, ipso facto, be vacant.

36C.
Term of office of President: The term of office of the
President shall be until the commencement of the
constitution to be promulgated by the Constituent
Assembly.

Quoting the Article 36B, some of the
constitutional experts and politicians advocated for
elections to a new president and a vice-president. They
argued that the dissolved CA could not craft a new
constitution; so, the term of the president elected by the
previous CA ended when a new CA was elected, a new president
and a new vice-president should be elected. So, the first
thing the CA should do was to elect a new president and a
new vice-president. The term of the new president and the
vice president would end after the crafting of a new
constitution.

Other constitutional experts and the NC
politicians advocated the term of the president and the vice
president would end only after crafting a new constitution
following the Article 36C. These guys argued that this
Article of the constitution clearly said that the term of
the office of the president would end only after the
promulgation of a new constitution. If you did not like this
Article you could impeach the president with the two-thirds
majority, said some of the NC leaders.

Honest
constitutional experts said that the new CA should reelect
the incumbent president; that would be the correct approach,
and would be a middle path between the two constitutional
provisions made for the office of the president or this path
would meet the provisions made by the two articles
concerning the election to a president and the term of the
office. So, the first session of the new CA was to elect a
new president and a new vice president.

CPN-UML leaders
wanted the share in the power rather than following the rule
of law. They wanted to bargain with the NC. How far they
would be successful to get the share in the emerging power
remains to be seen. However, none of the leaders of both the
NC and CPN-UML were for stepping back from the respective
stand. They did not care about the rule of law, and about
the crafting a new constitution but they concerned with the
power and money emanating from the power.

Concerning the
nominations of candidates for the proportional
representation to the newly elected CA, leaders of the
political parties did not think they needed to follow their
respective party statute rather they nominated their
favorites creating uproar against such nominations in each
political party. They would have avoided such situation if
they were to follow the rule of law.

For example, without
following the party statute, chairman of RPP-Nepal Kamal
Thapa nominated the people that had bided the highest prices
for the slots in the newly elected CA, alleged the dissident
group. The group went to the EC, and demanded the EC to
annul the list of the nominated candidate submitted by
Chairman Thapa, as it was done without following the rule of
law. The EC returned the list to the RPP-Nepal for
revision.

The dissident group of the RPP-Nepal even went
to the EC for registering a breakaway party of the RPP-Nepal
but the EC did not registered it without completing the
election process. That saved the RPP-Nepal from splitting.
If Chairman Thapa had followed the rule of law, nobody could
have said anything against the nominations he had made.
Thereafter, the local media reported the chairman fired some
of the dissident group members.

In the case of the
nominations made by the UCPN-Maoist, Chairman Prachanda said
that his party had made the list of nominations of the
candidates for the proportional representation following the
rules but senior leaders Dr Baburam Bhattarai and
Narayankaji Shrestha did not show up at the meeting to
discuss the nominations but they came out against the list.
So, when the party chairman followed the party statute to
prepare a list of the nominees, then the senior leaders
diverted from the rule thus creating uproar in the
party.

NC and CPN-UML had prepared the lists of their
favorites for the proportional representations. So, they
faced the problem of meeting the demands of leaders and
cadres of the parties for including the names of their
favorites on the list of the nominees for the proportional
representation in the newly elected CA, as neither the top
leaders nor other leaders and cadres are for following the
rule of law rather for bullying each other. The result was
the fight for extracting the maximum benefits from such
lucrative positions.

Who should call a first session of
the newly elected CA: the president or the chairman of the
interim election council of ministers had become the next
controversy. Top leaders including the president of NC had
been saying that the president should call the first session
of the CA following the international practice. Others said
that the chairman should call the first session following
the provision made in the Interim Constitution of Nepal of
2007

Some advocates had gone to the Supreme Court of Nepal
demanding the president should call the first session others
also went to the Supreme Court demanding the chairman should
call the first session. The apex court had to rule on this
issue, yet.

Concerning the calling of the first session of
the CA, the interim constitution has made the following
provisions.

51. Summoning and prorogation of sessions:
(1) The President shall, on the recommendation of the Prime
Minister, summon the session of the Legislature- Parliament
from time to time.

(2) The President shall, on the
recommendation of the Prime Minister, prorogue the session
of the Legislature-Parliament.

(3) If, during the
prorogation or recess of the session or meeting of the
Legislature-Parliament, at least one-fourth of the total
number of the then members of the Legislature-Parliament
make a petition that it is expedient to convene a session or
meeting, the President shall, no later than fifteen days,
convene such session or meeting by specifying the date and
time for the same, and the session or meeting of the
Legislature-Parliament shall commence or be held at the date
and time so specified.

Explanation: For the
purposes of this Clause, the expression "petition" shall
mean a document bearing the signature of the
petitioner.

69. Meeting of Constituent Assembly:
(1) The first meeting of the Constituent Assembly shall be
held as summoned by the Prime Minister within twenty one
days after the Election Commission has published the final
results of election to the members of the Constituent
Assembly; and thereafter, its meetings shall be held at such
place and time as may be specified by the person presiding
over the Constituent Assembly.

(2) Notwithstanding
anything contained in Clause (1), if no less than one-fourth
of the members of the Constituent Assembly make a petition,
along with the reason, to the Chairperson of the Constituent
Assembly that it is necessary to convene a meeting of the
Constituent Assembly, the Chairperson shall convene the
meeting of the Constituent Assembly no later than fifteen
days.

The constitutional provisions clearly stated
that both the president and the prime minister could call
the first session of the newly elected CA. One could argue
that current chairman of interim election council of
ministers was not the prime minister. However, he had been
working as the prime minister. Following the Article 51 of
the Interim Constitution of Nepal of 2007, the president
could call the first session if the chairman were to make
the recommendation for it. However, Nepal Bar Association
did not recognize the chairman as the prime minister. So,
only the president remained to call the first session of the
CA if everybody were to follow the words of the provisions
made in the constitution for calling the first session of
the CA.

Others said that the provision of the Article 69
of the constitution was made because at that time the prime
minister was officiating head of state. At that time, the
king was fired, and a new head of state was not elected,
yet. So, the then-prime minister acting as the head of the
state called the first session of the CA. These were the
facts but nobody had bothered to include such things as an
explanation in the constitution making the current
controversy, and causing delay in calling the first session
of the CA.

The contradictory provisions made in the
constitution for the term of the president, and for the
calling of the first session of the newly elected CA
demonstrated that the prime minister, and the president and
political leaders were not serious about the provisions made
in the constitution. They did not bother to remove such
contradictions in the constitutions. They believed that
everything was possible if the leaders of the four-party
political mechanism were to build a consensus on
anything.

Perhaps the political leaders did not have the
constitutional and legal advisors, too. Even if they had
they did not listened to the experts. The result was the
unnecessary hassle of calling the session of the CA, and of
the term of the president.

Obviously, the president also
did not bother about reading the constitution. He simply
signed off the ordinances once the leaders of his party
okayed. As the president, he should keep the constitution
with him all the time as the Christian keep the Bible, and
every time he needed to do something he needed to consult
the constitution. AS the Head of State and the protectorate
of the constitution, the president was to remove any virus
in the constitution. He should ask the prime minister to
avoid any virus in the constitution. Failing to do so, the
current president has been facing the problem of his term
ending without promulgating a new constitution. If the
president were to go without promulgating a new
constitution, this event would be another unique event in
the political history of Nepal. Some advocates had gone to
the Supreme Court of Nepal demanding to suspend the current
president paving the way for the new CA electing a new
president and, a vice-president. Issuing so many ordinances
disregarding vales and principles of the Inerimc
Constitution of Nepal of 2007, weakening the constitution
considerably. The result was the weak constitution could not
protect the president.

Currently, he had been consulting
with the constitutional experts, and political leaders and
so on to ascertain who should call the session.
Constitutional experts and political leaders could not do
anything concerning the clearly stated provisions in the
constitution. No need of interpretation for such provisions.
Only when the provisions were vague and such provisions
could be interpreted then experts could provide strong
arguments pro or against such provisions.

Currently, the
issues of who should call the first session of the CA have
been at the Supreme Court of Nepal, and of suspending the
current president for electing a new one, the rulings of the
apex court would say who would the call first session of the
newly elected CA whether the current president would be
suspended.

Thereafter, the president would need to face
whether the new CA would elect a new president and a new
vice president. The current set of the president has been
unstable due to the immature formulation of provisions made
and then inserted in the Interim Constitution of Nepal of
2007 by the ordinances without seriously looking into
whether these provisions were contradictory to each other or
not. Constitutional experts and politicians should not
repeat such mistakes in the new constitution to be
promulgated. Constitutional experts and even the news
reporters should keep a watch on such mistakes and they
should bring such mistakes to the public notice on
time.

On Thursday, January 10, 2014, speaking at an event,
President of NC Sushil Koirala squarely blamed the CPN-UML
for the current hassle of who should call the first session
of the newly elected CA, and whether a president should be
elected or not, and even charged the leaders of CPN-UML with
doing to make the new CA also a failure, according to the
Radio Nepal news aired at 7:00 am morning news on January
11, 2014. Up until then, President of NC Koirala had made
not any declaration. Nepalis had anticipated that Koirala
might act as Nepalese Mandela but the declaration had
frustrated Nepalese people. They have doubted whether
Koirala would be able to manage the current political
situation. He would be unable to manage the current
political situation if he were to follow the constitution.
The Interim Constitution of Nepal 0f 2007 has so many
amendments to it has clearly made the provision for electing
a new president, and the prime minister by the first session
of the CA.

On Saturday, January 11, 2014, the Chairman of
Interim Council of Ministers made a call for the first
session of the newly elected CA at the International
Convention on January 21, 2014. The president has lost his
status, and the first session of the CA would elect a
chairman of the CA, then a president and vice=president, and
prime minister as, the president opened the path to do
so.

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